Legal Corner: Use-of-Force and the Issue of Less Intrusive Means

By Mark T. Baganz, Esq.

A recurrent question in law enforcement circles is whether or not less intrusive means in use-of-force cases are required by law? Following is a review of some cases which have addressed this issue. From these cases it is recognized that law enforcement officers are not required by the 4th Amendment to use less intrusive means when confronted with a situation in which deadly force could justifiably be used. Accordingly, a critical issue is: either a deadly force situation exists or it does not exist under the circumstances.

Carswell v. Borough of Homestead, 381 F. 3d 235 (3rd Cir. 2004). This case involved a domestic dispute. Protective dispute orders had been issued against the husband because of violence. He broke into the family home approximately four times. On the night of the shooting, he had been confronted by the police and an officer ended up fatally shooting him. The wife filed a lawsuit against the city, the chief and the officer. As identified by the Appeals Court, one of the claims of the wife was that the municipality was liable under §1983 for “…fail[ing] to equip police officers with alternatives to lethal weapons.” In this case, evidence showed that the municipality had not provided the involved officer “…with a baton or pepper spray…. The use of these nonlethal weapons was permitted after an officer successfully completed applicable familiarization programs. The officer involved in this case had not received such training and was armed only with a gun.” Additionally, discovery showed that the officer believed that the husband may have had a weapon. He also “…said that if he had had non-lethal weapons in his possession, he would not have pulled his gun from the holster.” The Appeals Court rejected the wife’s argument about a failure to provide non-lethal weapons. The Court stated:

“Furthermore, we have never recognized municipal liability for a constitutional violation because of the failure to equip police officers with non-lethal weapons.…”

“…Mandating the type of equipment that police officers might find useful in the performance of their myriad duties in frequently unanticipated circumstances is a formidable task indeed. It is better assigned to municipalities than federal courts.”

Plakas v. Drinski, 19 F. 3d 1143 (7th Cir. 1994). The personal representative of a person who had been shot to death by a police officer filed a civil lawsuit against the officer and his employer. One of the claims most strongly urged by the plaintiff was that the officer had “…a duty to use alternative methods short of deadly force to resolve the situation before him.”

The 7th Circuit resoundingly rejected this argument stating:

“There is no precedent in this Circuit (or any other) which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used. There are, however, cases which support the assertion that, where deadly force is otherwise justified under the Constitution, there is no constitutional duty to use non-deadly alternatives first.” Plakas 19 F. 3d at page 1148.

The 7th Circuit noted that the plaintiff argued that the officer should have had more choices available to him other than deadly force, such as a trained canine or a canister of gas. In rejecting this argument, the 7th Circuit stated:

“There is…not a single precedent which holds that a governmental unit has a constitutional duty to supply particular forms of equipment to police officers. And, in fact, the Fifth Circuit has held that the Constitution ‘does not mandate that law enforcement agencies maintain equipment useful in all foreseeable situations.’ Salas v. Carpenter 980 F. 2d 299, 310 (5th Cir. 1992).”

“We do not think it is wise policy to permit every jury in these cases to hear expert testimony that an arrestee would have been uninjured if only the police had been able to use disabling gas or a capture net or a taser (or even a larger number of police officers) and then decide that a municipality is liable because it failed to buy this equipment (or increase its police force). There can be reasonable debates about whether the Constitution also enacts a code of criminal procedure, but we think it is clear that the Constitution does not enact a police administrator’s equipment list. We decline to use this case to impose constitutional equipment requirements on the police.” Plakas 19 F. 3d at pages 1150 – 1151.

Scott v. Edinburg, 346 F. 3d 752 (7th Cir. 2003). In Edinburg, the 7th Circuit Court of Appeals reviewed a case wherein family members of a person who had been killed by police brought a federal civil rights lawsuit against the officer involved in the shooting. The trial court granted the officer’s motion for summary judgment. In affirming the trial court’s dismissal of the lawsuit, the 7th Circuit noted that the report of plaintiff’s expert witness, even if admissible, did not create a genuine issue of fact to prevent dismissal of the lawsuit since the expert’s report concluded: “that the officer: ‘…should have used the least amount of force possible under the circumstances if there were lesser alternatives available to secure the same result…’” Edinburg, 346 F. 3d at page 760.

In rejecting the expert’s conclusion, the 7th Circuit Court of Appeals pointedly stated: “We have rejected that position and stated, ‘[w]e do not believe that the Fourth Amendment requires the use of the least or even a less deadly alternative so long as the use of deadly force is reasonable under Tennessee v. Garner and Graham v. Connor….” Edinburg, 346 F. 3d at page 760.

Menuel v. City of Atlanta, 25 F. 3d 990 (11th Cir. 1994). In Menuel the personal representative of the deceased, and her father, filed a federal civil rights lawsuit against the City of Atlanta and certain of its police officers for the fatal shooting of a mentally disturbed woman. Among other things, they alleged that the officers had used excessive force in shooting the woman. The trial court refused to dismiss the case against the officers by denying their motion for summary judgment. The 11th Circuit Court of Appeals reversed the trial court and stated that:

“… ‘where deadly force is otherwise justified under the Constitution, there is no constitutional duty to use non-deadly alternatives first…” “The Fourth Amendment does not require officers to use the least or even less intrusive alternatives in search and seizure cases.’ …”

Scott v. Henrich, 39 F. 3d 912 (9th Cir. 1994). In Scott, the 9th Circuit affirmed the dismissal of a case against police officers and their municipality which had been brought by the widow of a man shot by police. The 9th Circuit stated:

“Plaintiff argues that the officers should have used alternative measures before approaching and knocking on the door where Scott was located. But, as the text of the Fourth Amendment indicates, the appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them…” The 9th Circuit went on to explain why officers should not be required to identify and utilize less intrusive measures:

“Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heat of battle, with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to assess the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment. Officers thus need not avail themselves of the least intrusive means of responding to an exigent situation; they need only act within that range of conduct we identify as reasonable.…”

The Fourth Amendment has consistently been viewed by courts as requiring reasonableness when dealing with use-of-force issues. This is repeatedly emphasized in Graham v. Connor, (490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), and its progeny. Accordingly, because of the case law on the specific issue of less intrusive means, perhaps it would be prudent to evaluate departmental policies and training in light of the actual standards, duties and obligations imposed by law. Does your department’s use-of-force policy require officers to use certain types of force only as a last resort? What is the legal basis for this? What would the effect be of such a self-imposed burden on a use-of-force case in your jurisdiction? What steps has your department taken to train officers with respect to applying the concept of reasonableness in use-of-force training scenarios? It certainly appears that these decisions have legal impact relating to a department establishing use-of-force options and developing policies concerning the application of those options. Officers should consult their legal advisors and local prosecuting attorneys for guidance concerning these issues.

Mark. T. Baganz is a former City of Madison, Wisconsin, police officer and practicing attorney in the Milwaukee area.

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